Over the past year, 14 men considered sexually dangerous have asked the Minnesota Court of Appeals to free them from indefinite civil commitment.

All 14 were swiftly turned down.

Many of their attorneys argued, passionately but unsuccessfully, that sending them to the state’s high-security program after they’d served prison sentences was unconstitutional.

But now that argument may be gaining power. In last week’s highly anticipated ruling on a class-action lawsuit, U.S. District Judge Donovan Frank called Minnesota’s sex-offender commitment process “draconian” and in need of reform. Since the program’s inception in 1993, only one out of nearly 700 sex offenders has been discharged.

The ruling “will heighten everybody’s awareness and give greater scrutiny for the people in the program,” said Eric Janus, dean of the William Mitchell College of Law in St. Paul. “Some being held are no longer at a danger level that requires a facility with double razor wire.”

Minnesota’s judicial branch has consistently resisted freeing or transferring offenders who’ve been committed to treatment centers in Moose Lake and St. Peter. Janus, who filed a brief with the Minnesota Civil Liberties Union in support of the offenders’ suit, said only six out of about 450 appealed commitments have been reversed in 20 years.

“The appellate courts have treated these cases as finding[s] of facts or law and stayed away from policy issues,” he said. “They haven’t weighed in on clarifying the standards for committing somebody.”

The commitment process typically is triggered when a sex offender is nearing release from prison. A panel determines if the offender is at high risk to reoffend, and may notify the county attorney’s office to consider a civil commitment. A trial is held in district court, where the judge hears expert psychological testimony.

To be committed as a sexually dangerous person, there must be clear and convincing evidence that the person has engaged in a course of harmful sexual conduct and manifested a sexual personality or other mental disorder highly likely to result in harmful sexual conduct. More than 80 percent of commitment petitions are approved.

At the heart of the offenders’ lawsuit, Frank said, was the notion that being civilly committed to the treatment program is equivalent to a lifetime of criminal incarceration in a facility run like a medium- to high-security prison. The plaintiffs, he said, allege that the three-phase treatment system of “chutes and ladders” frequently returns offenders to earlier phases without independent review of their progress.

Frank declined to rule on the question of whether the program is unconstitutional, but did order a team of experts to review the standards of treatment for all civilly committed sex offenders and to look at how other states treat “lower-functioning” sex offenders in community settings.

If the findings show the program violates the offenders’ civil rights, he said, he won’t hesitate to order corrective actions.

Frank also strongly urged the Legislature, which convenes Tuesday, to revise the treatment system, which he described as “clearly broken.” Two task forces have been formed to examine the program, and Gov. Mark Dayton has publicly voiced his concerns.

Any policy changes in the commitment process should be debated at the Legislature because a courtroom isn’t a good place to create policies, said Mark Ponsolle, head of the division that handles commitments for the Ramsey County attorney’s office.

Ponsolle said he wasn’t surprised at the lack of reversals by the Court of Appeals.

“The district court judges are seeing first hand if the experts are credible,” he said. “It’s not the correct route to seek release from the treatment program in court. I believe the process for commitment is sound.”

Appeals face an uphill battle

The 14 offenders who lost appeals in the past year range in age from 24 to 53. Most have been civilly committed for a few years, but one man has been in the program since 1996.

The criminal patterns that lead to civil commitment show why this legal action is reserved for extreme circumstances. A 50-year-old Ramsey County man convicted of sexually assaulting six people admitted, during treatment, that he had assaulted at least a hundred more boys and girls between the ages of 2 months and 18 years. Another Ramsey County man was convicted of three violent rapes and diagnosed as a sexual sadist. A 33-year-old Carlton County man had raped and murdered a woman and sexually touched women during 15 burglaries.

Several of the offenders didn’t hire a lawyer to prepare their appeals. The arguments for removal from the treatment program included a lack of evidence that criteria for commitment were met, inaccurate determinations of whether a offender was highly likely to reoffend, ineffective counsel, a request for a less-restrictive alternative to commitment and the constitutional prohibition against double jeopardy.

Each Court of Appeals denial addressed the legal issues relevant to the case. And every ruling stated that the review was occurring in a light most favorable to the district court’s findings. The higher court said a lower court’s decision had to be clearly erroneous for it to be overturned.

The only case with a dissenting opinion from an Appeals Court judge involved Cedrick Ince, 24, who served less than three years in prison for two sexual assaults. In his dissent, Judge Larry Stauber said Ince’s civil commitment was clearly erroneous because he didn’t have the required history of violent behavior and wasn’t highly likely to reoffend.

“The fact that this case even made it to district court for a commitment hearing is also interesting and strange,” Stauber said.

Ince’s case will be reviewed by the Minnesota Supreme Court.

A faulty crystal ball?

Attorney Greg Schmidt has represented several offenders fighting civil commitment. One of his clients was accepted to a long-term outpatient treatment facility where he would have been under intense supervision by the Department of Corrections, Schmidt said. But when Washington County officials petitioned for civil commitment, the treatment facility rejected him.

The decision to commit him was based largely on psychological experts’ predictions about his possibility of reoffending, Schmidt said, adding that nothing in that process is clearly objective.

“It’s a judgment call,” he said. “They’re trying to looking into the future.”

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